F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

Tenth Circuit

TENTH CIRCUIT

JAN 21 2005

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 04-4172

DANIEL JOSEPH PALERMO,

Defendant-Appellant.

(D.C. No. 2:03-CV-742-DS)

(D. Utah)

ORDER AND JUDGMENT*

Before BRISCOE, McKAY, and HARTZ, Circuit Judges.
Defendant Daniel Joseph Palermo, appearing pro se, filed a motion with the
district court seeking vacatur of his sentence so that he could pursue a direct appeal. The
district court, acting sua sponte, recharacterized the motion as seeking relief pursuant to
28 U.S.C. 2255 and denied relief. Palermo now appeals. Exercising jurisdiction
pursuant to 28 U.S.C. 1291, we conclude the district court erred, after characterizing the
motion as filed pursuant to 2255, in failing to allow Palermo to withdraw or supplement

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
*

the motion. Accordingly, we vacate the district courts order denying the motion and
remand for further proceedings.
I.
On August 29, 2002, Palermo pled guilty to possession of an unregistered sawedoff shotgun. Palermo was sentenced on November 11, 2002, to sixty-four months
imprisonment, to be followed by thirty-six months supervised release. Palermo did not
file a direct appeal. On July 11, 2003, Palermo, appearing pro se, filed a pleading entitled
MOTION FOR SUMMARY IMPOSITION OF NEW SENTENCING JUDGMENT.
ROA, Doc. 1. In that pleading, Palermo asked the district court to vacate his sentence and
impose a new sentencing judgment so that Palermo could perfect a direct appeal. Id. at
1. In support of his request, Palermo asserted that his defense counsel had failed to file a
timely notice of appeal and had failed to communicate adequately with Palermo regarding
his right to appeal. Id. at 6.
On August 28, 2003, the district court issued a one-page order construing
Palermos motion as filed pursuant to 28 U.S.C. 2255 and directing the United States
to file an answer or response. Id., Doc. 3 at 1. Palermo objected to the district courts
recharacterization of his motion. In particular, on September 19, 2003, Palermo filed a
notice of appeal complaining that the district court recharacterized his motion without

notice to him and without his consent.1 Palermo also filed two motions with the district
court asking it to stay the proceedings and toll the limitations period for filing a 2255
motion.
On January 13, 2004, the district court issued a seven-page decision and order
concluding that the performance of Palermos defense counsel did not fall below an
objective standard of reasonableness, and denying Palermo relief pursuant to 2255.
ROA, Doc. 6 at 6. Palermo has since filed a timely notice of appeal.2
II.
In Castro v. United States, 540 U.S. 375, ___, 124 S.Ct. 786, 792 (2003), the
Supreme Court held that a district court may not recharacterize a pro se litigants motion
as a request for relief under 2255 unless the court first warns the pro se litigant about
the consequences of the recharacterization, thereby giving the litigant an opportunity to
contest the recharacterization, or to withdraw or amend the motion. That holding
effectively blessed what had been the law in our circuit for several years. United States
We dismissed that appeal on October 8, 2003, based on lack of finality under
1291. See United States v. Palermo, No. 03-4220 (10th Cir. Oct. 8, 2003).
1

On March 30, 2004, Palermo filed a pleading with the district court entitled
Motion to Vacate, Set Aside Under 2255. The district court concluded Palermo had not
received authorization from this court to file a second or successive 2255 petition, and
accordingly transferred the pleading to this court. In response to our written notice,
Palermo filed a motion to compel asking us to direct the district court to file the
pleading as his first 2255 motion. In support of his motion, Palermo asserted, in part,
that the district court had improperly recharacterized his August 2003 pleading as a
2255 motion. We ultimately decided to construe Palermos motion to compel as a
misdirected but timely notice of appeal from the district courts January 13, 2004, order.
2

v. Martin, 357 F.3d 1198, 1199-2000 (10th Cir. 2004).

As asserted by Palermo on appeal, the record in this case establishes that the
district court failed to comply with Castros directive. Specifically, the district court did
not warn Palermo of the consequences of its recharacterization of his pro se motion, i.e.,
that the recharacterization would effectively bar Palermo from filing another 2255
motion asserting additional claims. Nor did the district court, despite Palermos
protestations to the recharacterization, afford him the opportunity to withdraw the motion
or amend it to include any additional claims that he might have. The result is serious: by
sua sponte treating his motion as one under 2255, the [district] court essentially used up
[Palermos] one shot at attacking his conviction[] and sentence. United States v. Kelly,
235 F.3d 1238, 1241 (10th Cir. 2000).
To remedy this situation, we will vacate the [district] courts order denying the
motion and remand the case so that [Palermo] may make all of his collateral arguments in
a single 2255 motion. Id. at 1242. Although the one-year statute of limitations
applicable to 2255 motions would ordinarily bar any amendment or new motion at this
point, we note that at the time the district court recharacterized Palermos motion,
Palermo had several months left in which to file an original 2255 motion. In
anticipation of Palermo amending his original motion or filing a new 2255 motion on
remand, we hold that the limitations period for him to do so should be tolled from the
date the district court recharacterized his motion as a 2255 motion, on August 28,
4

2003, until the date of this decision. Id. at 1243.

The district courts order denying Palermos motion is VACATED, and the case is
REMANDED to the district court for further proceedings consistent with this order.

Entered for the Court

Mary Beck Briscoe
Circuit Judge